Colorado Truck Driver Fails to Climb ADA Proof Hurdle

Kollman & Saucier
Kollman & Saucier

As courts have observed, the Americans with Disabilities Act (ADA) provides a “most favored nation” status to the millions of us who have physical or mental impairments.  Though the law provides a benefit (reasonable accommodation) to disabled individuals that is not required to be given to the general public, this benefit is not without limitations.  For example, as the Tenth Circuit recently affirmed, an individual with a disability must still show that he or she is qualified for the job before raising a viable ADA claim.  Kilcrease v. Domenico Trans. Co., No. 15-1320 (10th Cir. July 12, 2016).

Under the ADA, a “qualified individual” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  42 U.S.C. § 12111(8).  The ADA regulations explain that determining whether a particular job function is essential requires consideration of several factors, including the employer’s judgment as to which functions are essential, written job descriptions prepared before advertising or interviewing applicants for the job, the consequences of not requiring the incumbent to perform the function, and the current work experience of incumbents in similar jobs. See 29 C.F.R. § 1630.2(n).

Mark Kilcrease began his career as a commercial truck driver in 1994 and drove with his Commercial Driver License (CDL) in Colorado from 1994-2002.  Around June 2002, however, Kilcrease was diagnosed with Acute Myeloid Leukemia (AML), a rare form of cancer.  Thankfully, his cancer was in remission by 2004, and he began actively seeking work again in 2006.

In October 2009, Kilcrease responded to a commercial truck driver job posting by Domenico Transportation Company (“Domenico”), including completing Domenico’s pre-application questionnaire.  According to the job posting, Domenico sought drivers with at least three years of verifiable recent mountain driving experience (the “Mountain-Driving Requirement”).  Kilcrease stated that he met this requirement.  Kilcrease also disclosed – without being asked – that he was in remission from AML.

Weeks later, Kilcrease received a telephone call from manager Phil Domenico, who told Kilcrease that his application was rejected.  According to Kilcrease, Domenico told him, “the insurance company that underwrites the company’s health insurance policy would not cover you because of your prior diagnosis of AML”  Kilcrease claimed that Domenico then confirmed he was “not being considered for employment because [he was] in remission from AML,” and that Kilcrease told Domenico that the company may have violated the ADA.  In any case, Domenico declined to offer Kilcrease the position.

Kilcrease then filed a charge of disability discrimination and retaliation and subsequently sued Domenico.  Domenico claimed that Kilcrease could not show he was a “qualified individual with a disability” because he failed to demonstrate he met the Mountain-Driving Requirement.  In addition, Domenico claimed that because it had already decided not to offer Kilcrease the job before Kilcrease identified a potential ADA issue, it could not have retaliated against him.  The district court agreed and granted Domenico summary judgment.

The Tenth Circuit affirmed this judgment.  The court acknowledged that an individual claiming disability discrimination has the burden of showing that he or she is “qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired.”  Analyzing the evidence, the court concluded that Kilcrease had failed to show that he met Domenico’s objective criteria.  The court rejected Kilcrease’s argument that the Mountain-Driving Requirement was not uniformly applied, concluding that Kilcrease had insufficient evidence that two current Domenico drivers did not meet the Requirement.  Furthermore, viewing the evidence in the light most favorable to him, the court determined that Kilcrease himself had, at most, 1 ½ years of mountain driving experience.  In other words, demonstrating his prima facie case – specifically, that he was a qualified individual with a disability – proved a hill too steep for Kilcrease to climb.

The court also rejected Kilcrease’s retaliation claim.  Because Domenico’s had unequivocally decided to reject his application prior to Kilcrease’s contention that his ADA rights had been violated, there was no causal connection as a matter of law.  Therefore, Domenico’s was allowed to “keep on trucking.”

Though the decision may strike some as harsh, the decision represents an appropriate application of deference to employers who neutrally apply their job qualification requirements.  By creating and maintaining specific and current job descriptions that accurately capture what employees in the position actually perform, employers can greatly mitigate their risks of exposur

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